Sagar v . Warden, NHSP CV-04-204-PB 10/20/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karl Sagar
v. Case N o . 04-CV-204-PB Opinion N o . 2005 DNH 145 Bruce Cattell, Warden, New Hampshire State Prison
MEMORANDUM AND ORDER
Karl Sagar has filed a petition for a writ of habeas corpus
challenging the portion of his sentence that suspends his
driver’s license for three years after his release from prison.
Sagar and respondent Bruce Cattell, Warden of the New Hampshire
State Prison, have filed cross-motions for summary judgment.
Because I determine that this court does not have subject matter
jurisdiction over Sagar’s petition, I deny his motion for summary
judgment and grant the Warden’s motion.
I. BACKGROUND1
Sagar pled guilty on June 1 , 1994 to aggravated driving
while intoxicated (“ADWI”), see N.H. Rev. Stat. Ann. (“RSA”) §
1 The facts, which are not in dispute, are taken from Sagar’s petition and the state court record. 265:82-a, I(b) (1993), and manslaughter, see RSA § 630:2, I(b)
(1986). Pursuant to a negotiated plea agreement, he was
sentenced to 12-24 years in state prison on the manslaughter
charge and 3½ - 7 years on the ADWI charge, to run concurrently.
The ADWI sentence also required: “Revocation of right to operate
a motor vehicle in [S]tate of NH for three (3) years after
release from the NH State Prison.”
In 2003, after the maximum term of the ADWI sentence had
expired, but while he was still serving the minimum term of the
manslaughter charge, Sagar wrote to the Department of Motor
Vehicles (DMV) requesting confirmation that his driving
privileges would be reinstated on May 3 0 , 2004. 2 The DMV replied
that the return of Sagar’s license involved a “variable date” and
suggested that he contact the superior court for clarification.
Sagar then filed a Motion to Compel Compliance on November 2 3 ,
2003, and a Motion for Clarification of Sentence on January 2 2 ,
2004, in Belknap County Superior Court. The court denied both
motions and the New Hampshire Supreme Court declined Sagar’s
2 This date was three years after the conclusion of the maximum ADWI sentence.
-2- appeals without comment.
Sagar filed his habeas petition on May 2 5 , 2004, asserting
that suspension of his driver’s license after he is released from
prison on the manslaughter charge would breach his plea agreement
and would result in illegal segmentation of the ADWI sentence
into two installments. The petition was referred to Magistrate
Judge Muirhead, who determined that Sagar had failed to exhaust
the remedies available in state court because he had litigated
only one of the two issues raised in his petition. See 28 U.S.C.
§ 2254(b)(1)(A). Pursuant to the magistrate judge’s order (Doc.
N o . 3 ) , Sagar opted to have the petition stayed while he
satisfied the exhaustion requirement.
Sagar then filed a Motion to Correct Illegal Sentence in
superior court on September 9, 2004, raising his claim that
delaying suspension of his driver’s license would amount to an
impermissible installment punishment. The motion was denied and
the New Hampshire Supreme Court declined Sagar’s appeal without
comment. Sagar then filed a “status report” demonstrating that
all of his claims had been exhausted in state court (Doc. N o . 6 ) .
-3- II. ANALYSIS
A. The “In Custody” Requirement
This court has jurisdiction to entertain Sagar’s petition
for habeas corpus relief only if he “is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3) (emphasis added). The statute requires
“that the habeas petitioner be ‘in custody’ under the conviction
or sentence under attack at the time his petition is filed.”
Maleng v . Cook, 490 U.S. 4 8 8 , 490-91 (1989). This requirement
serves to “preserve the writ of habeas corpus as a remedy for
severe restraints on individual liberty.” Hensley v . Municipal
Court, 411 U.S. 345, 351 (1973). Thus, in order for this court
to have jurisdiction over Sagar’s petition, he must have been “in
custody” under the sentence that he is attacking at the time his
petition was filed. See Maleng, 490 U.S. at 490.
Physical confinement is not required in order to challenge a
sentence through habeas review. Id. at 491. Thus, a prisoner
who has been placed on probation or parole under an unexpired
sentence may still meet the “in custody” requirement because of
the ongoing restraints on his liberty. Id.; Jones v . Cunningham,
-4- 371 U.S. 236, 242-43 (1963); see also Barry v . Bergen County
Prob. Dep’t, 128 F.3d 1 5 2 , 161 (3d Cir. 1997) (holding that
community service sentence imposed in lieu of fine meets custody
requirement); Dow v . Circuit Court of the First Circuit, 995 F.2d
922, 923 (9th Cir. 1993) (holding that sentence of mandatory
attendance at alcohol rehabilitation program meets custody
requirement).
Although the custody requirement has been liberally
construed, see Maleng, 490 U.S. at 4 9 2 , not all criminal
sentences meet this jurisdictional requirement. At a minimum,
there must be a restraint on liberty that is “not shared by the
public generally” as well as “some type of continuing
governmental supervision.” Lefkowitz v . Fair, 816 F.2d 1 7 , 19
(1st Cir. 1987) (quotations omitted). Thus, habeas relief is not
available for fine-only convictions because the fine itself is
not a serious restraint and the possibility that imprisonment
will result is considered too remote and speculative. Tinder v .
Paula, 725 F.2d 8 0 1 , 804 (1st Cir. 1984). Likewise, courts have
declined to extend habeas relief to convictions resulting in
driver’s license suspensions. Lillios v . New Hampshire, 788 F.2d
6 0 , 61 (1st Cir. 1986); Harts v . Indiana, 732 F.2d 9 5 , 97 (7th
-5- Cir. 1984); Westberry v . Keith, 434 F.2d 623, 625 (5th Cir.
1970). These courts recognize that although a license suspension
may involve hardship, “suspension of driving privileges is not
the sort of severe restraint on individual liberty for which
habeas corpus relief is reserved.” Harts, 732 F.2d at 96-97
(quotation and brackets omitted).
B. Application
A careful review of the undisputed facts demonstrates that
Sagar cannot satisfy the “in custody” requirement with respect to
the sentence he is attempting to challenge in his habeas corpus
petition. First, it is undisputed that Sagar had already served
the maximum prison sentence imposed on the ADWI charge by the
time he filed his federal habeas corpus petition. Accordingly,
he was not literally “in custody” on that sentence when he filed
his petition; nor was he subject to further parole supervision as
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Sagar v . Warden, NHSP CV-04-204-PB 10/20/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karl Sagar
v. Case N o . 04-CV-204-PB Opinion N o . 2005 DNH 145 Bruce Cattell, Warden, New Hampshire State Prison
MEMORANDUM AND ORDER
Karl Sagar has filed a petition for a writ of habeas corpus
challenging the portion of his sentence that suspends his
driver’s license for three years after his release from prison.
Sagar and respondent Bruce Cattell, Warden of the New Hampshire
State Prison, have filed cross-motions for summary judgment.
Because I determine that this court does not have subject matter
jurisdiction over Sagar’s petition, I deny his motion for summary
judgment and grant the Warden’s motion.
I. BACKGROUND1
Sagar pled guilty on June 1 , 1994 to aggravated driving
while intoxicated (“ADWI”), see N.H. Rev. Stat. Ann. (“RSA”) §
1 The facts, which are not in dispute, are taken from Sagar’s petition and the state court record. 265:82-a, I(b) (1993), and manslaughter, see RSA § 630:2, I(b)
(1986). Pursuant to a negotiated plea agreement, he was
sentenced to 12-24 years in state prison on the manslaughter
charge and 3½ - 7 years on the ADWI charge, to run concurrently.
The ADWI sentence also required: “Revocation of right to operate
a motor vehicle in [S]tate of NH for three (3) years after
release from the NH State Prison.”
In 2003, after the maximum term of the ADWI sentence had
expired, but while he was still serving the minimum term of the
manslaughter charge, Sagar wrote to the Department of Motor
Vehicles (DMV) requesting confirmation that his driving
privileges would be reinstated on May 3 0 , 2004. 2 The DMV replied
that the return of Sagar’s license involved a “variable date” and
suggested that he contact the superior court for clarification.
Sagar then filed a Motion to Compel Compliance on November 2 3 ,
2003, and a Motion for Clarification of Sentence on January 2 2 ,
2004, in Belknap County Superior Court. The court denied both
motions and the New Hampshire Supreme Court declined Sagar’s
2 This date was three years after the conclusion of the maximum ADWI sentence.
-2- appeals without comment.
Sagar filed his habeas petition on May 2 5 , 2004, asserting
that suspension of his driver’s license after he is released from
prison on the manslaughter charge would breach his plea agreement
and would result in illegal segmentation of the ADWI sentence
into two installments. The petition was referred to Magistrate
Judge Muirhead, who determined that Sagar had failed to exhaust
the remedies available in state court because he had litigated
only one of the two issues raised in his petition. See 28 U.S.C.
§ 2254(b)(1)(A). Pursuant to the magistrate judge’s order (Doc.
N o . 3 ) , Sagar opted to have the petition stayed while he
satisfied the exhaustion requirement.
Sagar then filed a Motion to Correct Illegal Sentence in
superior court on September 9, 2004, raising his claim that
delaying suspension of his driver’s license would amount to an
impermissible installment punishment. The motion was denied and
the New Hampshire Supreme Court declined Sagar’s appeal without
comment. Sagar then filed a “status report” demonstrating that
all of his claims had been exhausted in state court (Doc. N o . 6 ) .
-3- II. ANALYSIS
A. The “In Custody” Requirement
This court has jurisdiction to entertain Sagar’s petition
for habeas corpus relief only if he “is in custody in violation
of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3) (emphasis added). The statute requires
“that the habeas petitioner be ‘in custody’ under the conviction
or sentence under attack at the time his petition is filed.”
Maleng v . Cook, 490 U.S. 4 8 8 , 490-91 (1989). This requirement
serves to “preserve the writ of habeas corpus as a remedy for
severe restraints on individual liberty.” Hensley v . Municipal
Court, 411 U.S. 345, 351 (1973). Thus, in order for this court
to have jurisdiction over Sagar’s petition, he must have been “in
custody” under the sentence that he is attacking at the time his
petition was filed. See Maleng, 490 U.S. at 490.
Physical confinement is not required in order to challenge a
sentence through habeas review. Id. at 491. Thus, a prisoner
who has been placed on probation or parole under an unexpired
sentence may still meet the “in custody” requirement because of
the ongoing restraints on his liberty. Id.; Jones v . Cunningham,
-4- 371 U.S. 236, 242-43 (1963); see also Barry v . Bergen County
Prob. Dep’t, 128 F.3d 1 5 2 , 161 (3d Cir. 1997) (holding that
community service sentence imposed in lieu of fine meets custody
requirement); Dow v . Circuit Court of the First Circuit, 995 F.2d
922, 923 (9th Cir. 1993) (holding that sentence of mandatory
attendance at alcohol rehabilitation program meets custody
requirement).
Although the custody requirement has been liberally
construed, see Maleng, 490 U.S. at 4 9 2 , not all criminal
sentences meet this jurisdictional requirement. At a minimum,
there must be a restraint on liberty that is “not shared by the
public generally” as well as “some type of continuing
governmental supervision.” Lefkowitz v . Fair, 816 F.2d 1 7 , 19
(1st Cir. 1987) (quotations omitted). Thus, habeas relief is not
available for fine-only convictions because the fine itself is
not a serious restraint and the possibility that imprisonment
will result is considered too remote and speculative. Tinder v .
Paula, 725 F.2d 8 0 1 , 804 (1st Cir. 1984). Likewise, courts have
declined to extend habeas relief to convictions resulting in
driver’s license suspensions. Lillios v . New Hampshire, 788 F.2d
6 0 , 61 (1st Cir. 1986); Harts v . Indiana, 732 F.2d 9 5 , 97 (7th
-5- Cir. 1984); Westberry v . Keith, 434 F.2d 623, 625 (5th Cir.
1970). These courts recognize that although a license suspension
may involve hardship, “suspension of driving privileges is not
the sort of severe restraint on individual liberty for which
habeas corpus relief is reserved.” Harts, 732 F.2d at 96-97
(quotation and brackets omitted).
B. Application
A careful review of the undisputed facts demonstrates that
Sagar cannot satisfy the “in custody” requirement with respect to
the sentence he is attempting to challenge in his habeas corpus
petition. First, it is undisputed that Sagar had already served
the maximum prison sentence imposed on the ADWI charge by the
time he filed his federal habeas corpus petition. Accordingly,
he was not literally “in custody” on that sentence when he filed
his petition; nor was he subject to further parole supervision as
a result of that sentence. Second, Sagar has no argument that he
should be deemed to be “in custody” on the ADWI charge based on
the fact that he has not finished serving his sentence on the
manslaughter charge. Sagar was given concurrent sentences on the
ADWI charge and the manslaughter charge. Thus, the allegedly
illegal ADWI sentence had no effect on the manslaughter sentence.
-6- Finally, Sagar is simply incorrect in claiming that he should be
deemed to be “in custody” on the ADWI charge because his sentence
on that charge stemmed from the same plea agreement that resulted
in his sentence on the manslaughter charge. This contention is
meritless because Sagar bases his petition solely on the alleged
illegality of the sentence he received on the ADWI charge rather
than on any deficiency in the proceedings that led to his guilty
pleas.
IV. CONCLUSION
The Warden’s Motion for Summary Judgment (Doc. N o . 15) is
granted and Sagar’s Motion for Summary Judgment (Doc. N o . 10) is
denied. The clerk is instructed to enter judgment accordingly.
SO ORDERED.
/ s / Paul Barbadoro Paul Barbadoro United States District Judge
October 2 0 , 2005
cc: Karl Sagar, pro se Karen Ann Gorham, Esq.
-7-